The right to wage war is almost entirely limited to sovereign states. This is usually seen as the product of humanitarian concerns. However, argue Claire Vergerio and Quentin Bruneau, the principle was enshrined in the nineteenth century to empower existing state authorities against challengers—including groups struggling against colonialism, who were reduced to criminals. This is now playing out in the Israel-Palestine conflict. Israel is granted a right to wage war denied to Palestinians.

1. An Israeli ‘right to self-defense’ versus a Palestinian ‘right to resistance’

In a collective response to the 7 October 2023 Hamas attack, Joe Biden, Justin Trudeau, Emmanuel Macron, Olaf Scholz, Giorgia Meloni, and Rishi Sunak declared ‘their support for Israel and its right to defend itself against terrorism’ while also calling for ‘adherence to international humanitarian law’. Months later, faced with the mounting death toll in Gaza, the overwhelming sentiment among many governments in the West seems to be that both sides have committed terrible atrocities in violation of international humanitarian law, but that ultimately, Israel was and remains legally entitled to defend itself.

This seemingly obvious right to self-defense—the central exception to the prohibition on the use of force in contemporary international law—is in fact the object of lively debate among international lawyers. The core of the disagreement hinges on whether Article 51 of the United Nations (UN) Charter can be invoked against a non-state actor. Some claim that this article was constructed as an exception to the prohibition on the use of force in interstate relations found in Article 2(4) and is accordingly only relevant as a justification to use force against other states. Others see it as a self-standing article that can be invoked even against non-state actors, as the United States did after the attacks of 11 September 2001. We will return to the historical origins of this debate later on; for now, what matters is that the terrain on which the debate is unfolding is that of a right to ‘self-defense’.

When it comes to the question of the use of force by Palestinians, the legal discussion has always been markedly different. As late as 2015, one commentator wondered whether ‘the world will ever get around to asking if maybe Palestinians have a right to self-defense too’.

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Why does no one speak of a Palestinian right of self-defense, but only of resistance?

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Since 2023, legal scholars and practitioners have begun answering this call somewhat timidly, though the language they use is different. Marco Sassòli recently explained that ‘it is not unreasonable that they [Palestinians] have the right to use force to exercise their right to self-determination and to resist occupation’, while Marko Milanovic stated that he is willing to accept a Palestinian right to resist the Israeli occupation in principle. Some have been more forceful. Legal scholar Noura Erakat for instance claimed in an interview that ‘Palestinians have the right to use force against Israel and all military installations and targets to end their unjust rule’ throughout ‘the entire occupied territory’. Likewise, in a recent report, Shahd Hammouri states that ‘resistance by the Palestinian people against an illegal occupying power by all means available at their disposal is a legitimate act’. This wind of change even reached the International Court of Justice (ICJ), where Chinese envoy to the UN Zhang Jun argued in favor of ‘Palestinian people’s use of force to resist foreign oppression and complete the establishment of an independent state’, a right that is, he claimed, ‘well-founded in international law’.

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Thus, on the one hand, there is a discussion about Israel, self-defense and Article 51 of the UN Charter; on the other, a debate about Palestine or Palestinians, and a right to ‘resistance’. These are not interchangeable: self-defense has long been regarded as the most legitimate justification for the use of force, while resistance is a much murkier and contested category. So, why are these two sets of arguments about the use of force in world politics couched in such starkly different legal terms? And why does no one speak of a Palestinian right of self-defense, but only of resistance?

The short answer is that this has to do with the nature of the modern laws of war, and particularly of the jus ad bellum, i.e. the laws about who can go to war and for what reason. By contrast with the jus in bello, i.e. the rules regarding how to fight appropriately once a conflict has started, the jus ad bellum, much more dauntingly, distinguishes who can take up arms and legally kill in the first place. Those deemed to hold such a right get to be treated as prisoners of war when captured—a status that comes with clear protections (Art. 13, Geneva Convention III)—while those who do not can be classified as mere criminals and receive prison sentences. The fact that some people might be legally entitled to kill others may be shocking to some, and the existence of this morally objectionable right is itself a subject of debate. However, to the extent that this right is granted, it must be restricted in some fashion. The question, as ever, is how?

 2. The little-known origins of the sovereign state’s monopoly on war

We owe our current answer to this question largely to nineteenth-century lawyers, who argued that only sovereign states had the right to wage war, and thus that only those officially fighting on their behalf could legally kill. While attempts to amend this rule exist, it remains the cornerstone of the contemporary laws of war. The ambiguous statehood of Palestine is thus entirely intertwined with the fundamental legal asymmetry between Israelis and Palestinians when it comes to claiming a right of self-defense.

The idea that only sovereign states should have the right to use force is both recent and contested. As a legal principle, it was enshrined when the laws of war were first codified in the late nineteenth century. The various declarations and conventions that emerged at the time—the Paris Declaration of 1856, the Lieber Code of 1863, the Geneva Convention of 1864, the St. Petersburg Declaration of 1868, the Brussels Declaration of 1874, the Oxford Manual of 1880, and the Hague Conferences of 1899 and 1907—gave us the basis for the contemporary system of international rules that regulate the outbreak and conduct of hostilities (‘Hague Law’) and govern the protection of those outside combat such as civilians, wounded soldiers, prisoners of war and the like (‘Geneva Law’).

Although states’ monopolization of the right to wage war is typically depicted as the product of humanitarian concerns following the wars of religion in early modern Europe, this conventional narrative is grossly inaccurate (as is the broader historical account that sees a European system of sovereign states emerge with the 1648 Peace of Westphalia). The primary impulse behind this restriction of the right to wage war was in fact the empowerment of existing state authorities against their challengers, both at home and abroad.

Demoting questions about the justness of causes, jurists developed a system that put the legal status of the parties involved at the heart of discussions about the laws of war. Three conflicts were particularly central in the minds of those who sought to assert state authority: the US Civil War (1861–65), the Franco-Prussian War (1870–71), and the Paris Commune (1871). In all three cases, the authority of an existing state was challenged by an actor who could not claim ‘statehood’ in the same way. In the US Civil War, the challengers were Confederate forces (controversially recognized as belligerents on a par with the US government by several European nations) and—separately—First Nations tribes. During the Franco-Prussian war, debates broke out over the status of the highly effective French civilian militias known as the ‘francs-tireurs’, whom the Prussians treated as mere criminals. During the Paris Commune, civilian insurgents formed an independent secular socialist government that challenged the national authorities before being brutally repressed by the state army. 

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The goal of the 1874 Brussels Declaration, the most comprehensive text on the laws of war at the time, was less to protect civilians from combatants than to protect combatants from civilians.

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Codifying the laws of war meant writing down the rules of the game for conflicts to come. One of the most consequential questions of all within these nineteenth-century debates concerned a key aspect of the jus ad bellum: who has the right to wage war? Who should be recognized as a legitimate combatant, entitled to kill and to be protected by the laws of war in case of wounding or capture? And who should, on the contrary, be prosecuted as a criminal, as a mere murderer? It is in this context that civilians under occupation were banned from resisting occupying forces, that First Nations tribes were excluded from legitimate belligerency as ‘savages’ through the Lieber Code, that militias were—precisely against the requirements of insurgent tactics—obliged to operate under a clear commander and to carry arms openly (1874 Brussels Declaration, Art. 9). The goal of the 1874 Brussels Declaration, the most comprehensive text on the laws of war at the time, was less to protect civilians from combatants than to protect combatants from civilians. 

With codification, the right to wage war was thus enshrined as the sole prerogative of sovereign states, breaking with an older legal tradition that endowed a far greater variety of entities with this right. During the second half of the nineteenth century, the sovereign state was still not the dominant political model worldwide, but the newly formed professional field of international law sought to create a system centered entirely upon it, granting the modern sovereign state an unmatched range of rights and duties. This was great news for those who were part of the gentlemen’s club of mutually-recognizing sovereign states, which overlapped almost perfectly with ‘the family of civilized nations’, a self-identified group of states that were predominantly European or of European descent. For those who could not claim this status—domestic insurgents, occupied populations in Europe, and most obviously, peoples at the receiving end of colonial expansion—the rules of the game were now severely rigged against them. During decolonization, virtually all armed national liberation movements were treated as terrorist groups who did not have the right to wage war. There was one major and semi-successful attempt to change these rules: the 1977 Additional Protocols to the Geneva Conventions.

3. The struggle against the state-centric laws of war

While the earlier 1949 Geneva Conventions are widely considered to be the greatest milestone in the establishment of the contemporary system for regulating war, they ultimately reiterated the state-centric setup of the late-nineteenth century. In a positive development, they brought all the previously codified laws protecting hors de combat persons under a single piece of legislation and added a baseline level of protection for civilians across all forms of armed conflict—a major strengthening of the jus in bello. However, they did little to rethink the core issue of the jus ad bellum, the question of who had the right to wage war.

If anything, they entrenched key aspects of the nineteenth-century system, most importantly the idea that only recognized sovereign states could engage in ‘international armed conflicts’, and thus that imperial conflicts were ‘non-international armed conflicts’ on a par with civil wars, to which international humanitarian law was mostly inapplicable. Since the codified laws of war applied only to inter-state conflicts, states mostly (though not systematically) claimed that the relevant law applicable when using force against non-state actors was either municipal, imperial, or martial law. In fact, it is precisely because of the longevity of this state-centric system that the ‘right to self-defense’ enshrined in Article 51 of the UN Charter was envisioned as a right to be invoked by states against other states. And that is why Israel and the US’s invocation of Article 51 against non-state actors, such as the Taliban or Hamas, has generated so much debate amongst jurists.

By contrast, the 1977 Additional Protocols emerged from a period of strong international legal activism by countries known as the nonaligned ‘Third World’, who sought to change some of the foundational rules of the international order. A movement led by the Egyptian lawyer George Abi-Saab managed to establish that struggles ‘in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination’ should be recognized as ‘international armed conflicts’ (Additional Protocol I, Art. 1 §4). This meant that national liberation movements representing what were by definition not-yet-states would now be on equal legal footing with colonial powers. What this Additional Protocol accomplished, ultimately, was to reintroduce the idea that legitimate combatants were not only those fighting on behalf of a recognized sovereign state, but also those individuals fighting in defense of a sufficiently ‘just’ cause.

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Palestinians continue to be unable to claim the same rights as Israel under the current laws of war.

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While numerous Western states voted against this provision during the first session of the Geneva Diplomatic Conference in 1974, the zeitgeist was rapidly changing, and by 1977 many either voted in favor or abstained, citing concerns about the practical applicability of the rule rather than the broader principle. The eleven abstentions came from the USA, the UK, the Federal Republic of Germany, Canada, Italy, France, Spain, Ireland, Monaco, Japan, and Guatemala.

Only one country ‘totally rejected’ the provision: Israel.

To this day, Israel remains one of just twenty states that have not ratified Additional Protocol I, alongside countries including the USA, Turkey, Iran, India, and Pakistan. Thus, this segment of international humanitarian law, while accepted by 174 countries, does not apply to the conflict between Israel and Palestine. In 1983, this impasse eventually led numerous states in the UN General Assembly to pass a resolution explicitly endorsing the legitimacy of the Palestinian armed struggle (A/RES/38/17). But UNGA resolutions are not legally binding as an instrument, and while they represent the opinion of the majority of states, they do not in and of themselves create rules of customary international law (A/RES/73/203). The consequence of all this is that however grave and repeated the violations of their rights under international law, Palestinians continue to be unable to claim the same rights as Israel under the current laws of war.

 4. Palestinians lack options against systematic oppression

The implications of this legal situation appear even more dire considering Israel’s dismissal of the various attempts to hold it accountable under international law. Thanks to the unflinching support of the United States and other Western allies, it has ignored the various orders and advisory opinions of the world’s highest court, the International Court of Justice (ICJ), and has instead doubled down on its actions with near-total impunity. These include the unabated creation and expansion of a ‘barrier wall’ and of Israeli settlements in the Occupied Palestinian Territory of the West Bank, both declared illegal by the International Court of Justice in 2004. The application of different legal regimes to Palestinians and Israeli settlers in the occupied territories have created such dire forms of discrimination that leading human rights organizations including Human Rights Watch, Amnesty International, and B’Tselem have accused Israel of the international crime of apartheid.

The situation has only gotten worse in recent months. This April, the ICJ issued an order requesting Israel to ‘immediately halt its military offensive, and any other action in the Rafah Governorate, which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part’. This has seemingly had no tangible impact on Israeli military operations. In July, in its greatest rebuke of Israeli policy to this day, the ICJ established that Israel’s occupation of Palestinian territories since 1967 violates international law, that Israel must end its unlawful presence there as rapidly as possible, including through the evacuation of all settlers, that it owes reparations for the damage caused to Palestinians in these territories, and that all other states must refrain from helping Israel maintain the status quo. Israeli Prime Minister Benjamin Netanyahu immediately dismissed the advisory opinion as ‘absurd’, arguing that ‘the Jewish people are not occupiers in their own land, including in our eternal capital Jerusalem nor in Judea and Samaria’ [the West Bank], while top members of his cabinet accused the ICJ of antisemitism and called for the further annexation of West Bank territories.

What options do Palestinians have to defend their rights in this context? Non-violent resistance has been ruthlessly suppressed by Israeli authorities and actively undermined by Israel’s leading Western allies. The main non-violent Palestinian resistance movement, BDS or ‘Boycott, Divestment, and Sanctions’, which calls for a) the end of Israel’s occupation of Arab land and the dismantling of the barrier wall, b) the recognition of the fundamental rights of the Arab-Palestinian citizens of Israel to full equality, and c) the respect, protection, and promotion of the rights of Palestinian refugees to return to their homes and properties as stipulated in UN Resolution 194 (§11), has come under severe fire in many Western countries. It has been especially harshly repressed in the US, where it is outlawed in thirty-eight states, and in France, where its complete outlawing was only overturned in 2020 by a unanimous decision of the European Court of Human Rights. Even support from neighboring Arab countries has dwindled at government level in spite of strong popular support for the Palestinian cause. 

Faced with Israeli impunity, the repression of non-violent resistance, and the certainty that any armed resistance will be deemed illegal, what choices are left for Palestinians? They can either do nothing about the repeated violations of their rights, or employ force with the knowledge that no matter how they do so, they will be considered criminals.

The question of how best to defend one’s rights in the face of brutal oppression and blanket criminalization is precisely the issue Algerians faced in their struggle against France (1954–62) when the French government categorically rejected demands for Algerian independence and instead doubled down on its military crackdown against all resistance. Throughout the conflict, the Algerian National Liberation Front (FLN) used brutal tactics to create as much fear and chaos as possible amongst the French authorities and the French population, directly targeting civilians in thousands of often gruesome attacks, including in cafés and restaurants. The French government denied any legitimacy to Algerian combatants, treated the FLN as terrorists, and only formally recognized that there had been a ‘war’ between France and Algeria—and not simply ‘police operations’, ‘actions to maintain order’, or a campaign of ‘pacification’—in 1999, over thirty years after Algerian independence. Algeria, for its part, imposed its own narrative of national liberation internationally shortly after France’s defeat, emphasizing that the FLN’s violent tactics were inevitable in the face of the structural imbalance between French forces and the Algerian resistance movement.

This is a classic but also tragic dynamic where the rules are such that the ‘winner takes all’. The main way out for populations put in such a position is to prevail by almost any means in order to eventually establish a sovereign state and retroactively present their use of force as a war of independence.

5. The way forward

There are at least three paths out of this pernicious setup. The first consists in pushing for the recognition of Palestinian statehood and thereby levelling the legal ‘playing field’ by giving Palestinians an uncontestable right to have a military and to protect the rest of their rights, with force if necessary. That statehood and the right to wage war go together is abundantly clear: In 2012, Israeli Prime Minister Benjamin Netanyahu agreed to recognize Palestine as a state, on the condition that it be de-militarized. Netanyahu’s explicit naming of this condition made clear his understanding that sovereign statehood normally comes with the right to wield military force. His demand would in fact have enshrined the military arrangement established by the 1993 Oslo Accords (Art. VIII), whereby Israel is responsible for the defense of Palestinians ‘against external threats’, a major caveat to Palestinian sovereign statehood. One historical precedent for this unusual arrangement is Belgium which, upon being created in 1830, was formally neutralized; it did not enjoy one of the core legal prerogatives of sovereign states, leading many nineteenth-century jurists to describe it as a ‘semi-sovereign’ state. In the current international legal order, being a sovereign state without a military is a rare oddity and crucially, it is voluntarily arranged rather than externally imposed. It also exclusively concerns micro-states such as Monaco and Palau. A couple of larger states, mainly Costa Rica, Iceland, and Panama have also foregone standing armies while retaining some military capacity—again, on a voluntary basis.

Some may want to argue that Palestine is already a state. Though we do not intend to settle that legal debate, it is worth noting that even those who do recognize Palestinian statehood understand that until it becomes a full UN member—an upgrade from its current observer status, which puts it on a par with the Holy See—it only enjoys a precarious position in the international legal order. Precisely for this reason, in April 2024, Algeria introduced a draft resolution to recognize Palestine as a sovereign state, a move that would hardly have been worthwhile if it was already so obviously one. This initiative was torpedoed by one of the five veto-wielding members of the UN Security Council, the United States, but it is not implausible to imagine that the recognition of Palestine as a state will continue to progress within the international community in the coming years.

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It is not clear why states, as one among many forms of political organizations, should be granted so many more rights and duties than other collectivities

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The second option is to grant a right to use force to entities that are on the path to national self-determination, even if they have not yet reached statehood. The idea would effectively be to generalize the rights recognized in Additional Protocol I and to consider them relevant even in situations where all parties have not subscribed to the Protocol. Arguments defending a ‘right of resistance’ for entities other than states—a view discussed at the outset of this article with respect to Palestine—can to a considerable extent be read as a move in this direction and away from a legal system that privileges the rights of already existing states. Since legal arguments tend to function on the basis of precedent, many of the scholars and practitioners pushing for such a right of resistance argue that this right already forms part of customary international law, though this is hardly a consensual claim. Whatever the case may be, this option would still center state rights, only extending the right to wage war to would-be states.

The third path is to reconsider more globally the way that international law allocates the right to use force. Currently, even if all states ratified Additional Protocol I or accepted that its provisions now form part of customary international law, the law would still hold that force can only be used by states or by groups who are trying to become states. As one of us has explored elsewhere, it is not clear why states, as one among many forms of political organizations, should be granted so many more rights and duties than other collectivities—such as the many indigenous peoples who do not wish to organize themselves politically as a state—especially in light of the questionable whiggish historical narratives that legitimize these superior rights. While much emphasis today is placed on the increasing clout of private military forces, the idea that our only options are either a world of strong states or a world ruled by undemocratic private forces is a false binary. There have historically been many ways of allocating the right to wage war to political entities of vastly different types, a fact too often obscured by widespread misconceptions about the history of the laws of war.

Whichever one of these three paths is pursued, what is clear is that the status quo is the worst of all possible worlds: any Palestinian use of force, regardless of the target, will be considered unlawful and therefore criminalized. Successfully pursuing one of the options laid out above would make it difficult for anyone to dismiss all Palestinian armed resistance whatsoever as terrorism, and for Israel to treat Palestinian fighters as criminals subject to jail sentences, rather than as prisoners of war, along with all the obligations and protections this status entails. As the situation in Gaza becomes ever more desperate, the distortion of the legal scales when it comes to the question of self-defense has become tragically clear. So long as war remains a necessary means for defending one’s rights in world politics, the international community cannot go on granting the right to engage in it to only one side in this conflict.